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Certified medical exams and waiver of litigation privilege

Since coming into force in 2004 the Minor Injury Regulation (“MIR”) has become a mainstay in the analysis of any personal injury action. Since the MIR came into effect both Plaintiff and Defence counsel have been applying and interpreting the MIR. It has only been relatively recently that some issues raised in the context of the MIR have come before the court for interpretation.

In the recent decision of Rodriguez v. Woloszyn [2012 ABQB 671] Master Schlosser was faced with an issue squarely within the confines of the MIR.

The Defendant wanted the Plaintiff to attend a Certified Medical Examination (“CME”) under the MIR. The Plaintiff agreed to the choice of Certified Medical Examiner (“Examiner”) but an issue arose with regard to the medical documentation that the Examiner reviewed when completing the CME report. As Plaintiff and Defence counsel know, the opinion of the Examiner will have considerable weight. Section 12 of the MIR provides that the opinion of the Examiner is prima facie evidence that the Claimant’s injury is or is not a minor injury essentially creating a rebuttable presumption in favour of the Examiner’s opinion.

In terms of organizing a CME, the documentation the Plaintiff provides to the Examiner gives an opportunity to persuade the Examiner the Plaintiff’s injuries are not minor and the documentation the Defendant provides to the Examiner is in an attempt to support the Defendant’s position that the Plaintiff’s injuries are minor. In Rodriguez, Plaintiff’s counsel provided two expert opinions to the Examiner. The expert reports had not been produced to Defence counsel and Plaintiff’s counsel argued that the expert reports were obtained for the dominant purpose of litigation, would ordinarily be privileged from production and that this privilege was not waived even though those expert reports had been provided to the Examiner.

The Examiner gave the opinion that the Plaintiff’s injuries were minor. Notwithstanding that, Defence counsel applied for production of the expert reports.

The court went through a number of cases that reviewed litigation privilege and specifically when that privilege may have been waived. There was some discussion of Ontario law and Master Schlosser ultimately determined that the Ontario Master’s summary of emerging legal principles was overly broad at least as far as Alberta law was concerned. There may be a different position to be taken with regard to production of Plaintiff and Defence expert reports given that the Plaintiff and Defence positions in a personal injury lawsuit are not the same. Master Schlosser preferred an approach or an analysis that could accommodate those differences.

Master Schlosser relied on Mr. Justice Slatter’s comments in the 2003 Queen’s Bench decision of Pinder v. Sproule. Slatter ultimately determined in that case that litigation privilege remained and set out applicable principles to consider when a document subject to litigation privilege is disclosed to a third party.

Master Schlosser concluded in Rodriguez that litigation privilege had not been waived. Even after a Plaintiff has been examined for a CME it is open to a Defendant to request that the Plaintiff be examined by a health care professional under Rule 5.41 of the Alberta Rules of Court.

The effect of such an examination may be an end to litigation privilege for the Plaintiff`s medical legal reports as Rule 5.44(3) provides that on request by the Defendant to the Plaintiff the Defendant is entitled to receive reports of every medical examination previously or subsequently made of the physical or mental condition of the Plaintiff. Rule 5.44(3) does not require this production in advance of the examination by a health care professional.

Master Schlosser noted that if a Defendant were automatically entitled to a Plaintiff`s privileged expert reports that were provided to an Examiner under the MIR CME there is a risk that a subsequent examination by a Defendant`s health care professional could become in essence a Defendant`s rebuttal report. [Rodriguez, para 23]

Master Schlosser ultimately stated that a court “ought to be reluctant to deprive a Plaintiff of whatever strategic benefit they might gain from the existing, well established, timing and manner of disclosure.” He went on to note that in the context of the MIR there is still a legitimate interest to be protected by the privilege notwithstanding disclosure of the Plaintiff’s medical reports to the Examiner. Maintaining this privilege will not result in unfairness or prejudice to the Defendant and does not undermine the integrity of the system of administration of justice.

As a result, we now have case law that allows Plaintiff’s counsel to provide the Examiner with expert reports that Defence counsel has not seen and may not see unless, and until, an Independent Medical Examination is completed. The Rodriguez case is one more piece to the still developing puzzle that is the application and interpretation of the MIR.